Delhi

West Delhi

CC/11/571

Dr. Sunil Kumar Wadhwa - Complainant(s)

Versus

The New India Assurance Co. Ltd - Opp.Party(s)

26 Aug 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

             GOVERNMENT OF NCT OF DELHI

  150-151 Community Centre, C-Block, JanakPuri, New Delhi – 110058

 

                                                                                     Date of institution:3.10.2011

Complaint Case. No.571/11                                        Date of order:26.08.2017

IN  MATTER OF

Dr. Sunil Kumar Wadhwa S/o  Late Sh. RaghunathRai, R/o C-4, F-116, First Floor, JanakPuri , New Delhi-110058.

            Complainant

VERSUS

1.        The New India Assurance Co. Ltd., Regional Office –II, 10^th Floor, Core-1,ScopMinar, District Centre,Laxmi Nagar, Delhi-110092 through its  Manager (  Grievance/ Deputy G.M.)

                                                                                                            Opposite party no.1

2.        The New India Assurance Co. Ltd. through its Divisional ManagerH-1A/39,  1^stFloor, Sector-63, Noida, G.B. Nagar, U.P.

                                                                                                Opposite party no.2

3.        E. Meditek (T.P.A.) Services Ltd. Through its authorized signatory  Plot  No. 577, UdyogVihar, Phase-V, Gurgaon, Haryana.

                                                                                                            Opposite party no.3

ORDER

R.S. BAGRI,PRESIDENT

Dr. Sunil Kumar Wadhwanamed above herein the complainant has filed the present consumer complaint under section 12 of the Consumer Protection Act hereinafter in short referred as the Act  against theNew India Assurance  Co. Ltd. and Others herein after  for convenience  referred as the opposite parties for directions to the opposite parties to refund  Rs. 1,00,000/-

insured  sum  of mediclaim policy  of his wife, return original claim papers of sixth claim, pay  Rs. 1,00,000/-  as compensation  on account of  harassment, mental torture  and monitory loss  suffered  by the complainant on the part of the opposite parties and  pay a sum of Rs. 1,00,000/- as  compensation for deficiency in service on the part of the opposite parties.

            The brief relevant facts necessary for disposal of the present complaint as stated  are that the opposite parties  no. 1 and 2 are  insurance company  with their  registered head office at Mumbai,  divisional branch offices at various places in India including Delhi and Noida. The opposite party no. 3 provides servicesas  a third party administrator to refer claim to the opposite parties no. 1 and 2.Thecomplainant isholder of amediclaim policy bearing no. 323100/34/09/11/00000943   of the opposite parties no. 1 and 2 with hospitalization benefit.  The complainant with his wife, daughter and son  are covered under themediclaim insurance policy . 

That wife of the complainant was diagnosed  for right side  breast cancer on 09.02.2010.  She was operated on 15.02.2010 at Rajiv Gandhi Cancer Hospital and Research Centre, Rohini,  Delhi herein after inshort referred as the Hospital.  She undergo  first cycle  of chemotherapy  on 26.03.2010.  She was  hospitalized on 06.04.2010 for second  and fifth cycle of  chemotherapy in the Hospital.  The complainant filed claim of her treatment with the opposite parties on 16.06.2010.  He on 07.07.2010  received  a letter from the opposite party no. 3  to provide  history lump  certificate from the  treating  doctor or first consultation paper and all  previous policy papers.  The complainant sent reply of the letter on 22.07.2010.  The opposite party no. 3 settled five claims of the complainant for Rs 23,274/-only against claim ofRs. 1,01,347/-  on the ground that the complainant is not entitled  to the room  rent.  The opposite  party no. 3  on03.09.2010 sent no claim letter to the complainant  with regard to the fifth  claim  for the reason that the complainant failed to send  policy papers before 2008  and discharge summary  of last hospitalization   dated  July 2010.  The complainant told the opposite party that the information regarding the policy papers shall be provided by the opposite party no. 2 and claim for hospitalization dated  July 2010 had not been submitted by the complainant since he was waiting  settlement of the previous  claims and the  amount exceeded  sum of Rs.  1,00,000/-. Therefore,  rejection of the fifth claim is malafide.

That the complainant sent  letter  dated 23.08.2010 to the opposite party no. 2 stating his grievances  against  the  opposite party no. 3 for unnecessary and irrelevant  queries  and clearing  only 20%  of the amount for the five claims   with a reason  as per   “RR  limit” in respect of the same case.  The drug cost   has no relation  with room    rent  and blood counts.   The  complainant  did  not  receive  any reply from the opposite party no. 2  of his  letter  dated 23.08.210, therefore,  he was constrained  to send reminder cum notice vide  letter dated 15.10.2010. The complainant  received  copy of a letter  written by the opposite party no. 2 to the opposite party no. 3  .  Wherein  the opposite party  no. 2  asked the opposite party no. 3  to send a suitable reply  to the complainant .  Therefore, the complainant made a telephonic  call to the opposite party no. 2  attended by Smt. Sujata.  Who  informed the complainant  that his case has been settled with  the opposite party no. 3  and the complainant  on receiving the said assurance returned  the four cheques received by  him in respect of his four claims  approved  the opposite party no. 3  and submitted  papers of sixth claim on 23.02.2011. But theletter  dated23.02.2011 with all annexures  was returned  after one month.  The complainant  after negotiation  with the opposite party no. 2  proposed  that  his all five  claims be returned  and complainant  would submit  a single  claim of radiotherapy.  Which was agreed by the opposite parties and the opposite  parties assured  that  previous claim  papers would be returned in original.  Smt.Sujata  official of the opposite party no. 2sent  Mr. AnujChoudhary representative of the opposite party  no. 3 with advise  to approach office of the opposite party   no. 3 at Gurgoan  to collect papers of the five old claims.    The complainant send back four cheques to the  opposite party no. 3.  He told the complainantfor  aletter for return of thefive old claims papers in original would be  returned to the complainant at his chamber at Gaziabad  Hospital.  But the complainant  did not receive any response from the  opposite parties and  on checking website of the opposite party no. 3 the complainant was shocked to find that his claim had been  recommended for repudiation.Thereupon  the complainant  approached the opposite party no. 2 to inquire   that why his claim was repudiated. There upon  the opposite party no.2  told the complainant  that since  the original discharge summary  was not submitted, therefore,  his claim has been declined.  There upon the complainant  approached grievances cell of the opposite parties no. 1 and 2 .  But to no effect.  Hence the present complaint for directionsto the opposite parties to refund  Rs. 1,00,000/- insured  sum  of mediclaim policy  of his wife, return original claim papers of sixth claim, pay  Rs. 1,00,000/-  as compensation  on account of  harassment, mental torture  and monitory loss  suffered  by the complainant on the part of the opposite parties and  pay a sum of Rs. 1,00,000/- as  compensation for deficiency in service on the part of the opposite parties.

After  notice  the opposite parties no. 1 and 2  appeared and filed joint reply raising  preliminary objections that the complaint involves disputed questions of facts for adjudication  which require  recording of detailed  oral and documentary evidence, therefore , falls within domain of Civil Court  and this forum  has no jurisdiction to entertain and try the present complaint.  The complaint is false and frivolous  and claim of the complainant has been rightly  rejected.  The complaint  is after thought and has been filed with mala-fide  intention just to cause financial loss to the opposite parties and prayed for dismissal of the complaint.

  On merits the opposite parties no 1 and 2  admitted that the complainant was holding insurance mediclaim policy no. 323100/34/09/11/00000943.  The complainant  with his wife, daughter and son  were covered  under the policy.  The complainant  submitted claims to the opposite parties.  The opposite parties  send  letter  dated 30.09.2010  to the  complainant  mentioning  that this is with reference to their  earlier  letters dated  19.08.2010, 07.07 2010 and 20.07.2010  asking the complainant to submit the information,and  copies of documents of previous  policy .  But the complainant did not reply the letter, therefore, for non cooperation and non compliance  the claim of the complainant was rejected .  All other allegations of the complaint are vehemently  denied and once  again prayed for dismissal of the complaint.

Despite service of notice the opposite party no. 3 did not appear, therefore,  the opposite party no. 3  was proceeded against  ex-parte vide order  dated 01.12.2012.

The complainant  filed rejoinder  to the reply  of the opposite parties no. 1 and 2 reiterating his stand taken in the complaint and controverting stand of the opposite parties no.1 and 2.

When the complainant Dr. Sunil Kumar Wadhwawas  asked to  lead evidence  he filed his affidavit narrating facts of the complaint and relied upon Annexure –A  copy of Insurance Policy no. 323100/34/09/11/00000943, Annexure- B letter dated 16.06.2010, Annexure-C  letter dated  07.07.2010,  Annexure- D letter dated 20.07.2010,  Annexure-D 1 prescription slip  dated 04.02.2010, Annexure D-2 Gyn. Cytopathology  report dated 09.02.2010 , Annexure D-3   prescription slip dated 10.02.2010, Annexure- E  letter dated 3.09.2010,  Annexure F- letter dated 23.08.2010,  Annexure-G letter dated 15.10.2010, Annexure-H letter dated 26.08.2010, Annexure-Ia dated 23.02.2011,  Annexure- Ib letter dated 23.03.2011,  Annexures- J, K and L e-mails dated 19.03.2011 and 21.03.2011, Annexure –M  letter dated 28.03.2011, Annexure- N letter  dated 29.03.2011 with  discharge summary from Rajiv Gandhi Cancer Institute and Research Centre, Annexure–O  insurance medicalim policy  no. 32310034100100020306, Annexures–P, Q and R e-mails dated 21.05.2011 and Annexure-S e-mail dated 31.05.2011.

When the New India  Assurance Company  Ltd. the  opposite parties no. 1 and 2  were  asked to lead evidence  they filed affidavit  of Sh. S.K. Soni Deputy Manager narrating facts of their reply . 

Both the parties have filed their written arguments in support of their respective contentions.

 

 

We  have heard the complainant and learned counsel for the opposite parties no. 1 and 2  and have gone through  the complaint, reply of the opposite  parties no. 1  and 2,  documents as well as written arguments filed  by the  parties carefully and thoroughly.

At the   outset  learned counsel for the  opposite parties no. 1 and 2   argued that  perusal  of the complaint shows that address of the regional office -2 of the opposite party no. 1 is  District Centre , Laxmi Nagar, Delhi-110092- Trans Yamuma, in territorial jurisdiction of District Consumer Forum West address of the Divisional  Manager of  New India Assurance Co. Ltd.  is 63, Noida, GautamBudh Nagar, U.P. in territorial jurisdiction of District Consumer Forum Noida and address ofE. Meditek (T.P.A.) Services Ltd. opposite party no. 3 is  UdyogVihar Phase V , Gurgoan in territorial jurisdiction of District Consumer Forum Gurgaon.  The complainant in  para 2 of the complaint  has pleaded that the opposite parties  no. 1 and 2 have branch offices at various  places in India including  Delhi and Noida.  The complainant has no where pleaded that  cause of action arose either at Delhi  or in  territorial jurisdiction of this  Forum. Therefore, this Forum  has no territorial jurisdiction to entertain and try the present complaint. 

In support ofhis argument he relied upon  section  11(2)A  of the Actwhich runs as under:­–

Section 11(2)A of the Consumer Protection Act “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1. the opposite party or each of the opposite party, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or   2(carries on business or has a branch office or) personally works for gain, or
2.  any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3(carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4(carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or
3. the cause of action, wholly or in part, arises. 

 He further argued that in similar circumstances the Hon’ble Supreme

Courtin case law reported as 2010 (1) Supreme Court cases page 135 Sonic Surgical V/S National Insurance Company Ltd. has held that in our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. (Vide G.P. Singh’s Principles of Statutory Interpretation. 9^thEdn. 2004, p.79.).

In the present case, since the cause of action arose at Ambala, the state Consumer Disputes Redressal Commission. Haryana alone will have jurisdiction to entertain the complaint.

Similar are the facts of the present complaint. The opposite parties have neither their residences,nor carries on business or have  a branch office or works  for gain or cause of action wholly or partly  arose within territorial jurisdiction of this Forum.

The opposite party no.1 has its regional office at District Centre, Laxmi Nagar, Delhi which false in territorial jurisdiction of District Consumer forum East Delhi, the opposite party no.2 has its office at Noida, G.B. Nagar, U.P. which false in territorial jurisdiction of District Consumer forum Noidaand the opposite party no.3 has its office at Gurgaon, Haryana which false in territorial jurisdiction of District Consumer forum Gurgaon, Haryana.These places are not situated within the territorial jurisdiction of this forum.

            Therefore, the arguments advanced by the learned counsel for the opposite parties no. 1  and 2  are forceful and  in view of the provisions of Section 11(2) A of the Act and dictum given by the Hon’ble Supreme  Court  in Sonic Surgical’s case(supra) have full force  on the facts  and circumstances of the  present  case. Hence we have no hesitation in concluding  that this  Forum  has no territorial  jurisdiction to entertain and try the present complaint .

            Resultantly it is ordered that the complaint be returned to the complainant for presentation before a competent forum having territorial jurisdiction.

Order pronounced on :26.08.2017

• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

 

 

 

(PUNEET LAMBA)                                                               ( R.S.  BAGRI )

                         MEMBER                                                                           PRESIDENT